Ashwani Kumar Mishra, J. - (1.) Revisionist is a company registered under the provisions of Indian Companies Act, 1956 and is engaged in real estate business. It is aggrieved by an order of Commercial Tax Tribunal, Ghaziabad, dated 11.7.2018, passed in Second Appeal No.371 of 2010 relating to Financial Year 2005-06 (State). The revisionist had approached the tribunal challenging an order passed in First Appeal No.98 of 2010, imposing liability of tax to the extent of Rs. 63,61,207.00/-, which has been rejected.
(2.) It transpires that revisionist purchased goods/construction materials for the purposes of raising construction of residential colony/apartments/commercial complexes in different projects undertaken by it within the State of Uttar Pradesh. The materials were partly purchased from within the State of Uttar Pradesh and partly from beyond the State of Uttar Pradesh. In respect of goods purchased from beyond the State, the revisionist claims to have paid central sales as was tax applicable.
(3.) Proceedings appear to have been initiated against the revisionist relying upon the judgment of the Apex Court in K. Raheja Development Corporation v. State of Karnataka, (2005) 5 SCC 162. It was alleged that revisionist had allotted properties and realized amounts in instalments whereafter constructions were raised, and therefore, the transaction would be covered within the ambit of 'works contract', but tax upon it has not been deposited. The revisionist challenged the proceedings on legal and factual grounds, but the same was not accepted and an addition of 20% was made in the turnover and liability of tax was determined, accordingly, which has been affirmed in appeal. Before the tribunal the orders were challenged on following three grounds:- (i) The agreement/allotment executed by the buyer did not amount to a development agreement and levy of tax, by applying the principles of 'works contract' was illegal. (ii) The authorities were not justified in denying benefit of section 3-F(2)(B)(i) of the U.P. Trade Tax Act, 1948 to the assessee. (iii) Addition of 20% amount towards construction materials was not justified when the books of account had otherwise been accepted. ;